M.D. v. N.C. ( 2024 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1193-22
M.D.,1
Plaintiff-Respondent,
v.
N.C.,
Defendant-Appellant.
________________________
Submitted September 25, 2024 – Decided October 2, 2024
Before Judges Mayer and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FV-09-2908-22.
N.C., appellant pro se.
The Vigneault Law Firm, attorneys for respondent
(Stephen R. Cappetta, on the brief).
PER CURIAM
1
We refer to the parties by their initials in accordance with Rule 1:38-3(d)(9)
and (10).
Defendant N.C. appeals from an August 2, 2022 final restraining order
(FRO) entered in favor of his ex-wife, plaintiff M.D., under the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. He also appeals
from an October 18, 2022 order denying his motion for reconsideration. We
affirm all orders on appeal.
We recite the facts from the one-day bench trial. Plaintiff testified at trial
and presented evidence in support of her assertion defendant committed the
predicate act of harassment, N.J.S.A. 2C:33-4. Defendant, who was self-
represented at trial, declined to testify and proffered no witnesses at trial.
The parties were married in 2013 and had a child that same year. Three
years later, they separated. Plaintiff and the child moved to California.
Defendant remained in New Jersey. In 2017, the parties divorced in California.
On June 23, 2022, plaintiff filed a domestic violence complaint in New
Jersey and obtained a temporary restraining order (TRO) against defendant. In
her complaint, plaintiff alleged defendant harassed her by sending threatening
emails. Her complaint also identified four instances of physical abuse between
2018 and 2021.
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Prior to the domestic violence trial, the judge advised, "New Jersey courts
would have no jurisdiction to address custody or visitation issues." The judge
explained "[t]hose [issues] ha[d] to be addressed in California . . . ."
At trial, plaintiff testified regarding defendant's emails and text messages.
According to plaintiff, those communications went beyond civil
communications regarding the child. She testified defendant's written
exchanges contained vulgar insults and threats directed at her.
Plaintiff told the judge defendant "abused and harassed [her] for over ten
years." She explained she needed a restraining order "because [defendant]
continued his harassment to the point of showing up to [her] home in California
and emailing [her] and finding where [she] live[d]." Based on defendant's
conduct, plaintiff testified she was "afraid for [her] safety."
Plaintiff also testified regarding incidents of defendant's physical abuse.
In 2012, plaintiff explained a verbal argument with defendant escalated when
defendant "picked [her] up and . . . slammed [her] in a chair," causing plaintiff
to suffer bruises. Plaintiff also described a 2016 incident when she told
defendant she "was going to leave" the marriage. During that incident,
defendant choked plaintiff and threatened further harm if she left the marriage.
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The judge then interrupted plaintiff's testimony and asked whether
plaintiff's complaint included these allegations of physical abuse. Although the
complaint failed to list these incidents, plaintiff's counsel argued the pleading
stated defendant "abused and harassed [plaintiff] for several years."
In response, the judge stated:
I'm concerned that the defendant is not on notice of
[these incidents] and prepared to defend that. So, if the
allegations are both physical and verbal and she's going
to go into detail about this physical abuse that raises a
concern. . . .
[W]e might have to adjourn this matter so [defendant]
can prepare for that.
The judge then asked if defendant was prepared to defend against
plaintiff's additional allegations of physical abuse. Defendant replied, "I would
like any new information to be stri[cken] from the record if it's not in the
complaint rather than an adjournment to prepare for newer complaints . . . ."
Notwithstanding defendant's request, the judge allowed plaintiff's
testimony regarding the 2012 and 2016 incidents. The judge explained:
I'm going to allow the testimony of these two incidents
– only these two incidents that are not listed on the
complaint. I'm going to allow the plaintiff to testify
about the two incidents, but I'm not making a
determination as to whether I'm going to consider it at
this moment. I'll . . . allow the testimony because . . .
[plaintiff] is here from California, so I want to move
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this along, but I'm not making a determination as to
whether . . . it's going to be considered ultimately.
Plaintiff resumed her direct testimony. She told the judge about the
constant emails and text messages sent by defendant. In those communications,
defendant repeatedly threatened to appear uninvited at plaintiff's California
home. During the divorce proceedings in California, plaintiff's lawyer
instructed defendant to refrain from contacting plaintiff directly. 2
Plaintiff also told the judge she relocated three times while living in
California. She did so "because [defendant] continue[d] to cyberstalk [her], find
[her] home, and threaten to show up and hurt [her] or people around [her]."
Plaintiff further testified defendant's messages caused her "anxiety and
fear." Plaintiff was particularly concerned about certain emails indicating
defendant located her residence even though plaintiff never gave him the
address.
In June 2020, plaintiff testified defendant appeared, in California, "at [her]
door looking through [her] windows." Plaintiff called the police, who suggested
she apply for a restraining order. However, plaintiff did not do so at that time.
2
At trial, plaintiff introduced 260 emails sent by defendant after he was
instructed not to contact her. The emails spanned the time period from January
2018 to June 29, 2022.
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Instead, plaintiff applied for, and received a TRO in New Jersey. After
defendant was served with the TRO, he immediately violated the order by
emailing plaintiff.
Plaintiff concluded her direct testimony stating she was "fearful" of
defendant. She also believed defendant would not stop his "relentless"
communications.
The judge then allowed defendant an opportunity to cross-examine
plaintiff. Rather than cross-examine plaintiff, defendant raised custody and
parenting time issues notwithstanding the judge's earlier instruction that such
issues must be adjudicated in California.
After a brief trial recess, the judge ruled regarding the admission of
plaintiff's newly asserted allegations of physical abuse. The judge stated:
So, the complaint will be orally amended. . . .
[S]ince I'm allowing . . . the plaintiff to orally
amend the complaint to add allegations that are not in
the complaint[,] I will afford [the defendant] the option
of granting [] a continuance . . . if you feel like you need
time to prepare to defend yourself against those two
allegations.
You also have the right to continue today. You
have the right to do that. If we do adjourn this matter
and continue it another day[,] then I will allow the
plaintiff to appear via Zoom. So, I will leave that up to
you.
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Defendant renewed his objection to allowing plaintiff to amend her
domestic violence complaint. The judge reiterated that defendant could proceed
with the trial the same day or, alternatively, adjourn the trial to another date to
respond to plaintiff's newly asserted abuse allegations.
When defendant repeated his objection, the judge stated:
I'm . . . going to allow you the flexibility of continuing
today because you've already heard the testimony about
an hour and a half ago, or I'll give you a new date . . . .
But it will continue from this point forward. We're not
going to do the whole matter over again. Let's say you
said you wanted a new date, you needed time to
prepare. When you come back[,] we're just going to
resume exactly where we were. Do you understand?
Defendant confirmed he understood and stated he would continue with the
trial that same day. Defendant then resumed cross-examining plaintiff and asked
if she had evidence or witnesses to support her newly raised allegations of
physical abuse. Plaintiff responded only she and defendant were present during
the described incidents.
After plaintiff completed her testimony, the judge explained defendant
had the "option to testify o[n] his own behalf." The judge further stated that if
defendant testified, at the conclusion of his testimony, "plaintiff's counsel ha[d]
the right to cross-examine [defendant]." The judge asked if defendant wanted
to testify.
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Before responding, defendant asked the judge for clarification regarding
his own testimony. The judge explained, "[Y]ou're pro se, so . . . there's no one
asking you questions. You're just going to give a narrative."
After the judge gave this clarification, the judge and defendant had the
following exchange:
THE COURT: So, sir, are you going to testify? . . .
[DEFENDANT]: No, Your honor.
THE COURT: Are you going to testify?
[DEFENDANT]: I won't testify. I won't testify, Your
Honor.
THE COURT: You're not going to testify on your own
behalf?
[DEFENDANT]: I'm not going to testify.
THE COURT: If you don't testify [o]n your own
behalf[,] I'm going to render a decision then.
[DEFENDANT]: No problem.
THE COURT: You understand that?
[DEFENDANT]: Yes. I thought you – is this our
closing arguments? I thought we had also closing
arguments?
THE COURT: I'll allow you to make closing
arguments, but it has to be only based on what the
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plaintiff said on direct and cross-examination; do you
understand that?
[DEFENDANT]: I understand.
THE COURT: Okay. So, you can give your closing
argument. You go first since the plaintiff – it goes in
reverse order at the end. So, you go first. Give your
closing argument and it can only be based on what the
plaintiff – the evidence that was adduced during the
trial.
After this exchange, instead of giving a closing argument, defendant
began testifying. The judge interrupted, stating, "You're . . . testifying. This is
a closing argument. . . . So, you can't testify now during your closing because
you decided not to testify. Do you understand?"
Defendant confirmed he understood. Defendant then advised he would
forego closing argument.
In response, the judge stated:
I will reopen your case and allow you to testify
under oath. You have to testify under oath. You testify,
plaintiff's counsel is going to cross-examine you. He's
going to cross-examine you about a lot of stuff. He has
the right to do that. I just want to make you fully aware
that you have the right to testify under oath. You're
deciding not to do that. You have the right to waive
that option.
You also have the right to give a closing
argument. A closing argument has to be based on the
evidence that was presented during the trial. You don't
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have an obligation to do that, but you have a right to do
that. Do you understand that?
Defendant again declined to testify and told the judge that he no longer
wanted to give a closing argument. Plaintiff's counsel then waived closing
argument.
At the conclusion of the trial, the judge placed his decision on the record.
The judge determined defendant committed the predicate act of harassment. He
found plaintiff's testimony regarding the prior history of domestic violence
credible. The judge also concluded defendant's vulgar and threatening emails
and text messages, unannounced arrival at plaintiff's California home, and
violation of the TRO, were done with the intent and purpose to harass plaintiff.
The judge noted many of defendant's emails and text messages were not limited
to issues regarding the child. Further, the judge explained defendant could, and
should, have applied to the California court to resolve any child-related issues
rather than harassing plaintiff with his constant emails and text messages.
After determining defendant harassed plaintiff, the judge analyzed
whether plaintiff required an FRO to prevent future acts of domestic violence.
Relying on plaintiff's testimony and defendant's violation of the TRO, the judge
found plaintiff continued to fear defendant and required an FRO to protect her
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from further abuse. Notably, the judge did not rely on, or even consider,
plaintiff's newly asserted incidents of physical abuse in rendering his decision.
Defendant moved for reconsideration of the FRO, which the judge denied.
In denying the motion, the judge stated on the record: "[Y]ou decided not to
testify. So, many of the arguments that you're bringing up right now, you're
bringing up for the first time because you[] decided to remain silent during the
trial with regard to your testimony." The judge concluded defendant had ample
opportunity to present his case at trial, but he declined to testify.
The judge also declined to consider defendant's reconsideration arguments
regarding the alleged violation of his parental rights. The judge reiterated
defendant's issues concerning custody and parenting time could only be
addressed in California, where plaintiff and the child lived. The judge
explained, "this trial was simply about whether you, under [the PDVA], harassed
[] plaintiff, and were in contempt of a domestic violence order that was issued
in New Jersey." The judge found defendant's arguments, "in addition to not
being brought up during the trial[,] [were] irrelevant to the narrow issues that
[the court] address[ed] under the [PDVA]."
On appeal, defendant argues he was deprived of the right to due process
when the judge considered allegations raised by plaintiff during the FRO hearing
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that were not asserted in her domestic violence complaint. He further contends
the FRO was unsupported by substantial and credible evidence, and plaintiff did
not require an FRO to protect her from future acts of domestic violence.
Additionally, defendant claims the judge erred in denying his motion for
reconsideration. We reject these arguments.
We first consider defendant's argument that he was deprived of his right
to due process during the FRO hearing. We disagree.
The PDVA "ensure[s] that individuals charged with committing domestic
violence offenses are treated fairly and receive the full panoply of due process
rights guaranteed by our federal and State constitutions." A.M.C. v. P.B., 447
N.J. Super. 402, 421 (App. Div. 2016). A person's due process rights are
violated if an FRO is granted based on allegations not contained in a domestic
violence complaint. H.E.S. v. J.C.S., 175 N.J. 309, 324-25 (2003).
Here, the judge afforded defendant an opportunity to adjourn the trial to
address plaintiff's allegations of physical abuse not contained in her domestic
violence complaint. However, after being given the option to adjourn or
continue the trial, defendant elected to proceed with the trial.
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Moreover, in issuing the FRO, the judge declined to rely on plaintiff's
newly asserted allegations of physical abuse. The judge granted the FRO based
on plaintiff's testimony limited to the allegations in her complaint.
Additionally, having reviewed the colloquy between the judge and
defendant, we are satisfied the judge scrupulously ensured defendant understood
his rights, including the right to cross-examine plaintiff and testify on his own
behalf. On this record, it is clear that defendant voluntarily chose to proceed
with the trial.
We decline to address defendant's arguments regarding his right to "care,
custody[,] and control" of his child. The FRO judge lacked jurisdiction to
address such issues and so advised the parties prior to the start of the trial.
Further, defendant's issues related to custody and parenting time were not
relevant to whether an FRO should be granted.
We next consider whether the judge erred in granting the FRO because
plaintiff failed to meet her burden under Silver v. Silver, 387 N.J. Super. 112(App. Div. 2006). We reject defendant's argument on this point.
Our review of an FRO issued by the Family Part is limited. See D.N. v.
K.M., 429 N.J. Super. 592, 596 (App. Div. 2013). See also Cesare v. Cesare,
154 N.J. 394, 411-12 (1998) (holding the appellate court's review of a trial
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judge's fact-finding function is limited). A judge's findings of fact "are binding
on appeal when supported by adequate, substantial, credible evidence." Cesare,
154 N.J. at 411-12. Deference is particularly warranted where, as here, "the
evidence is largely testimonial and involves questions of credibility." Id. at 412(quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). This is
because "the trial judge 'hears the case, sees and observes the witnesses, and
hears them testify,' affording it 'a better perspective than a reviewing court in
evaluating the veracity of a witnesses.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015)
(quoting Cesare, 154 N.J. at 412). We will "not disturb the factual findings . . .
of the trial judge" unless convinced they are "so manifestly unsupported by or
inconsistent with the competent, relevant[,] and reasonably credible evidence as
to offend the interests of justice." Allstate Ins. Co. v. Northfield Med. Ctr., P.C.,
228 N.J. 596, 619 (2017) (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of
Am., 65 N.J. 474, 484 (1974)).
When deciding whether to grant an FRO under the PDVA, a judge is
required to undertake a two-prong analysis. Silver, 387 N.J. Super. at 125-27.
"First, the judge must determine whether the plaintiff has proven, by a
preponderance of the credible evidence, that one or more of the predicate acts
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set forth in N.J.S.A. 2C:25-19[(a)] has occurred." Id. at 125. (citing N.J.S.A.
2C:25-29(a)).
Under N.J.S.A. 2C:25-19, domestic violence is the infliction of one or
more of the enumerated predicate acts upon a protected person. Harassment,
N.J.S.A. 2C:33-4, is a predicate act under the PDVA.
The statute states, a person commits harassment "if, with purpose to harass
another," the person "[m]akes or causes to be made, one or more
communications . . . in offensively coarse language, or any other manner likely
to cause annoyance or alarm." N.J.S.A. 2C:33-4(a). Additionally, harassment
may be found where a person "[e]ngages in any other course of alarming conduct
or of repeatedly committed acts with purpose to alarm or seriously annoy such
other person." N.J.S.A. 2C:33-4(c).
"[I]ntegral to a determination of harassment" under subsections (a) or (c)
is a finding by the trial court "that defendant acted with a purpose or intent to
harass another." State v. Duncan, 376 N.J. Super. 253, 261 (App. Div. 2005)
(citations omitted). Subsection (c) requires a course of conduct, rather than a
single communication. J.D. v. M.D.F., 207 N.J. 458, 477-78 (2011). A course
of conduct must be demonstrated by objective proof that it is "alarming or . . . a
series of repeated acts . . . done with the purpose to alarm or seriously annoy the
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intended victim." State v. Burkert, 444 N.J. Super. 591, 600 (App. Div. 2016),
aff'd, 231 N.J. 257 (2017) (citation and internal quotation marks omitted).
Subsection (c) also requires proof that the defendant "reasonably put that person
in fear for his safety or security or . . . intolerably interfere[d] with that person's
reasonable expectation of privacy." Burkert, 231 N.J. at 284-85.
The burden of proving a predicate act is a preponderance of the evidence
standard. N.J.S.A. 2C:25-29(a); Cesare, 154 N.J. at 401. While a single action
may constitute domestic violence, the action must be "sufficiently egregious."
Cesare, 154 N.J. at 402.
Determining whether conduct constitutes harassment is a fact-sensitive
inquiry. See State v. Hoffman, 149 N.J. 564, 580-81 (1997). "'A finding of a
purpose to harass may be inferred from the evidence presented,' and from
common sense and experience." H.E.S., 175 N.J. at 327 (quoting Hoffman, 149
N.J. at 577). Harassment may also be inferred from the parties' history. J.D.,
207 N.J. at 487.
If the judge finds a predicate act under the PDVA, the second inquiry "is
whether the court should enter a restraining order that provides protection for
the victim." Silver, 387 N.J. Super. at 126. Although the second Silver prong
"is most often perfunctory and self-evident, the guiding standard is whether a
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restraining order is necessary, upon an evaluation of the factors set forth in
N.J.S.A. 2C:25-29[(a)](1) to -29[(a)](6), to protect the victim from an immediate
danger or to prevent further abuse." Id. at 127.
In rendering an analysis under the second Silver prong, the judge should
consider the following:
(1) The previous history of domestic violence between the
plaintiff and defendant, including threats, harassment and
physical abuse;
(2) The existence of immediate danger to person or
property;
(3) The financial circumstances of the plaintiff and
defendant;
(4) The best interests of the victim and any child;
(5) In determining custody and parenting time the
protection of the victim's safety; [and]
(6) The existence of a verifiable order of protection from
another jurisdiction.
[N.J.S.A. 2C:25-29(a)(1)-(6).]
Having reviewed the record, we are satisfied there was sufficient credible
evidence to support the judge's conclusion defendant committed the predicate
act of harassment under the first Silver prong. Defendant engaged in a course
of alarming conduct through his incessant emails and text messages. That
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conduct was done to seriously annoy or alarm plaintiff. Further, defendant
appeared unannounced and uninvited to plaintiff's home in California .
Additionally, defendant made repeated threats in his written communications
sent to plaintiff, causing plaintiff to fear for her safety and security. Defendant's
communications included vulgar and vile language and threats of harm, which
were sent by defendant with the intent and purpose of seriously annoying or
alarming plaintiff.
Under the second Silver prong, the evidence established an FRO was
required to protect plaintiff "from an immediate danger or to prevent further
abuse." Silver, 387 N.J. Super. at 127. Here, the TRO ordered defendant not to
contact plaintiff. Despite that instruction in the TRO, defendant immediately
sent an email to plaintiff after he received the order. Additionally, plaintiff
reiterated she did not want defendant to contact her, yet he still sent emails and
text messages to her.
On this record, there was sufficient credible evidence supporting the
judge's findings under both Silver prongs. Thus, we discern no error in the
judge's granting an FRO in favor of plaintiff.
We next consider defendant's argument that the judge erred in denying his
motion for reconsideration. We reject this argument.
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We review a judge's decision on a motion for reconsideration for abuse of
discretion. See Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (citing
Kornbleuth v. Westover, 241 N.J. 289, 301 (2020)). An aggrieved party may
seek reconsideration under Rule 4:49-2 where: (1) the court based its decision
on "a palpably incorrect or irrational basis;" (2) the court either failed to consider
or "appreciate the significance of probative, competent evidence[;]" or (3) the
moving party is presenting "new or additional information . . . which it could
not have provided on the first application." Cummings v. Bahr, 295 N.J. Super.
374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401
(Ch. Div. 1990)).
Here, the judge's reasons for denying reconsideration incorporated his
findings in support of the issuance of the FRO. Defendant failed to articulate
any basis in law or fact for the judge to reconsider his decision. Nor did
defendant present any new or additional information which could not have been
provided during the domestic violence trial if defendant had elected to testify.
Having reviewed the record, we are satisfied the judge did not abuse his
discretion in denying defendant's reconsideration motion. While defendant
disagreed with the judge's decision to issue an FRO, defendant's dissatisfaction
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is not a basis for granting a motion for reconsideration. See Palombi v. Palombi,
414 N.J. Super. 274, 288 (App. Div. 2010).
To the extent we have not addressed any of defendant's remaining
arguments, the arguments lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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